CIA lawyer at center of computer snooping clash

Originally published March 12, 2014 at 4:31 pm
Updated March 12, 2014 at 6:46 pm

U.S. Sen. Dianne Feinstein, D-Calif., after finishing a speech on the Senate floor Tuesday. Feinstein, who chairs the Senate Intelligence Committee, has accused the CIA of secretly removing documents from computers used by the committee.

The top CIA lawyer accused by the head of the Senate Intelligence Committee of trying to intimidate the panel over its investigation into secret prisons and brutal interrogations of terrorism suspects was himself involved in the controversial programs, cited more than 1,600 times in the Senate's unpublished investigative report, according to the panel's chairwoman, Sen....

The top CIA lawyer accused by the head of the Senate Intelligence Committee of trying to intimidate the panel over its investigation into secret prisons and brutal interrogations of terrorism suspects was himself involved in the controversial programs, cited more than 1,600 times in the Senate’s unpublished investigative report, according to the panel’s chairwoman, Sen. Dianne Feinstein.

On Wednesday, White House spokesman Jay Carney confirmed that CIA acting general counsel Robert Eatinger also was one of two senior spy agency officials who informed administration lawyers earlier this year about plans to file a criminal complaint against Senate Intelligence Committee staffers. The CIA suspects the aides improperly gained access to a classified CIA report on the George W. Bush-era secret prisons and harsh interrogations overseen by the spy agency. Carney said CIA Director John Brennan also notified the White House about the decision.

Until Feinstein’s extraordinary Senate speech Tuesday in which she said the CIA was possibly trying to intimidate committee staff, Eatinger was little known outside a small cadre of highly specialized national security lawyers. He has maintained a low profile in a legal career that has spanned two decades at the CIA and in the Navy. But Feinstein’s remarkable accusations instantly made Eatinger famous — or infamous — over a simmering constitutional dispute that threatens to engulf two branches of the government.

Eatinger’s criminal complaint to Justice boomeranged when Feinstein rose in the Senate chamber Tuesday to lambaste the CIA for what she described as quietly removing documents the agency had earlier provided to Senate investigators, monitoring committee staffers and undermining congressional authority. Feinstein lashed out at Eatinger personally — though not by name — in accusing the CIA lawyer of “a potential effort to intimidate” committee aides and of providing “inaccurate information” to the Justice Department.

Eatinger did not return telephone calls from The Associated Press seeking comment Tuesday, and the CIA did not respond to questions about the counsel. CIA Director John Brennan said the agency was “not in any way, shape or form trying to thwart this report’s progression, release.” But Brennan made no comments about Feinstein’s characterization of the agency’s top lawyer.

Feinstein’s public broadside at the CIA may mark a rare turning point in what long has been her supportive relationship with the intelligence community. But her pointed criticism of Eatinger was equally unusual, training a harsh spotlight on a CIA veteran who previously had been caught up in a similar furor over the destruction of CIA videotapes that showed the agency’s waterboarding of several al-Qaida prisoners.

“I view the acting counsel general’s referral as a potential effort to intimidate this staff, and I am not taking it lightly,” Feinstein said. Two congressional officials confirmed that Feinstein’s remarks referred to Eatinger. The officials spoke on condition of anonymity, citing the classified nature of the internal investigations.

Eatinger was temporarily elevated to CIA’s acting counsel general after top CIA lawyer Stephen Preston left to become general counsel for the Defense Department. President Barack Obama’s new nominee for CIA general counsel, Caroline Kass, still needs Senate approval.

Eatinger was one of two CIA lawyers who reportedly told the director of the CIA’s clandestine service in 2005 there were no legal requirements for the agency to hold onto 92 videotapes that showed the abusive tactics used by its interrogators against al-Qaida prisoners. Although Eatinger and the other lawyer did not specifically sanction it, the CIA official, Jose Rodriguez, later ordered the tapes destroyed.

Rodriguez’s destruction of the tapes in late 2005 in an industrial-strength shredder came despite objections by the Bush administration’s White House counsel and the director of national intelligence. The CIA director at the time, Michael Hayden, assured senators that Rodriguez hadn’t destroyed evidence because there were still written cables describing what the videotapes showed, but Feinstein said Tuesday the cables downplayed the brutality of the program.

“The conditions of confinement and interrogations were far different and far more harsh than the way the CIA had described them to us,” Feinstein said. She said Senate staff was justified in removing a copy of an internal CIA report from a CIA computer that had been lent to the staff and bringing it to their secure offices on Capitol Hill because the CIA previously had destroyed material relevant to its investigation in the form of the videotapes.

The unauthorized destruction of the CIA videotapes is described in detail in a new book, “Company Man,” by the CIA’s then-top lawyer, John Rizzo.

“To have this disturbing stuff captured on videotape then to destroy it without telling anyone, I mean … I trusted Jose and believed his assurances that everything on the tapes was within the approved guidelines,” Rizzo said.

Rodriguez, who also wrote a book about the incident, “Hard Measures,” has said he ordered the CIA tapes destroyed “to protect the people who worked for me and who were at those black sites and whose faces were shown on the tape.”

Feinstein on Tuesday dredged up Eatinger’s earlier role providing legal advice about the videotapes and harsh interrogation tactics. She said he was a “chief lawyer” for the CIA’s Detention and Interrogation Unit from mid-2004 until January 2009, when Obama shuttered the CIA’s black sites abroad and dismantled the harsh interrogation program.

“He is mentioned by name more than 1,600 times in our study,” Feinstein said. “And now this individual is sending a crimes report to the Department of Justice on the actions of the same congressional staff who researched and drafted a report — which details how CIA officers, including the acting general counsel himself, provided inaccurate information to the Department of Justice about the program.”

Eatinger has been a lawyer with the CIA since at least 1994, when he played a tangential role in the aftermath of the Iran-Contra affair, the political scandal involving the Reagan administration’s secret sale of arms to Iran to fund rebels fighting the leftist Nicaraguan government. A court filing disclosed that Eatinger wrote on behalf of the agency in February 1994 to obtain a classified copy of the 1980s probe by independent counsel Lawrence Walsh into the scandal. Eatinger told a judge the CIA wanted to know whether Walsh’s findings required “internal investigation or whether any regulatory, administrative or disciplinary action is warranted.”

A law graduate of the University of San Diego, Eatinger also served as a military lawyer in the Navy Judge Advocate General’s Corps.

Eatinger was among several CIA lawyers and officers chastised by a senior federal judge in 2009 for withholding critical information in court proceedings about the status of an agency operative who was accused of bugging a former federal narcotics agent’s home. Judge Royce C. Lamberth said that Eatinger, former CIA Director George Tenet and four other agency officials had provided him with erroneous information that led him to dismiss charges against the CIA operative. Lamberth said the officials had committed fraud in not providing him with proper information about the operative’s clandestine status.

In 2007, Eatinger’s name surfaced as part of the House Intelligence Committee’s probe of the destroyed videotapes. An independent prosecutor appointed by Attorney General Eric Holder also reviewed the case but decided in November 2010 not to file charges against any CIA officials.

At issue in the new controversy in the Senate is what advice Eatinger gave Brennan before the criminal filing to Justice, and whether the Office of the Director of National Intelligence as well as the White House were consulted and gave approval. Carney said Wednesday that although the White House counsel’s office was informed of the CIA’s plans by Eatinger and Brennan, it did not approve the decision or provide any guidance.

On Wednesday, a spokesman for the DNI said Director James Clapper has been “fully aware of the circumstances related to this matter and is in regular contact with Director Brennan.” The DNI spokesman, Shawn Turner, did not say whether Clapper was told in advance of the CIA’s plans to file its complaint to Justice or whether he approved of the decision.

In a talk before the American Bar Association in Washington in October, Eatinger sketched out the thorny nature of his sensitive legal job and described his chief role as advising the CIA director “on the potential consequences of choosing one road over another.”

Eatinger said he spent 50 percent of his day briefing Brennan with legal options for every major action “so that he makes a witting decision and if it’s sufficiently controversial, he can go to the president, he can go to the National Security Council, go to the (Director of National Intelligence) and make sure that the others make the balance along with us on what to pursue and what not to pursue.”

Eatinger added that he often tells his secretive clients, “Just because you can do it doesn’t mean you should do it.”